Upper Tribunal Issues New Country Guidance on Eritrea

In MST and Others (national service – risk categories) Eritrea (CG) [2016] UKUT 443 (IAC) (7 October 2016), the Upper Tribunal has issued updated country guidance on the situation in Eritrea. Whilst reconfirming parts of the country guidance given in MA (Draft evaders – illegal departures – risk) Eritrea CG [2007] UKAIT 00059 and MO (illegal exit – risk on return) Eritrea CG [2011] UKUT 190(IAC), the updated country guidance on Eritrea may be summarised as follows:

• The Eritrean system of military/national service remains indefinite and since 2012 has expanded to include a people's militia programme, which although not part of national service, constitutes military service.

• The age limits for national service are likely to remain the same as stated in MO, namely 54 for men and 47 for women except that for children the limit is now likely to be 5 save for adolescents in the context of family reunification. For peoples' militia the age limits are likely to be 60 for women and 70 for men.

• The categories of lawful exit are likely to be as follows:

– Men aged over 54
– Women aged over 47
– Children aged under five (with some scope for adolescents in family reunification cases)
– People exempt from national service on medical grounds
– People travelling abroad for medical treatment
– People travelling abroad for studies or for a conference
– Business and sportsmen
– Former freedom fighters (Tegadelti) and their family members
– Authority representatives in leading positions and their family members

• It continues to be the case that most Eritreans who have left Eritrea since 1991 have done so illegally. However, a person whose asylum claim has not been found credible cannot be assumed to have left illegally. And, if such a person is found to have left Eritrea on or after August/September 2008, it may be that inferences can be drawn from their health history or level of education or their skills profile as to whether legal exit on their part was feasible, provided that such inferences can be drawn in the light of adverse credibility findings. For these purposes a lengthy period performing national service is likely to enhance a person's skill profile.

• Failed asylum seekers as such are not at risk of persecution or serious harm on return.

• If a person of or approaching draft age will be perceived on return as a draft evader or deserter, he or she will face a real risk of persecution, serious harm or ill-treatment contrary to Article 3 or 4 of the ECHR.

• A person who is likely to be perceived as a deserter/evader will not be able to avoid exposure to such real risk merely by showing they have paid (or are willing to pay) the diaspora tax and/have signed (or are willing to sign) the letter of regret.

• Even if such a person may avoid punishment in the form of detention and ill-treatment it is likely that he or she will be assigned to perform (further) national service, which, is likely to amount to treatment contrary to Articles 3 and 4 of the ECHR.

• There are persons likely not to face a real risk of persecution or serious harm notwithstanding that they will be perceived on return as draft evaders and deserters, namely: (1) persons whom the regime's military and political leadership perceives as having given them valuable service (either in Eritrea or abroad); (2) persons who are trusted family members of, or are themselves part of, the regime's military or political leadership. A further possible exception, requiring a more case specific analysis is (3) persons (and their children born afterwards) who fled (what later became the territory of) Eritrea during the War of Independence.

• A person whose asylum claim has not been found credible, but who is able to satisfy a decision-maker (i) that he or she left illegally, and (ii) that he or she is of or approaching draft age, is likely to be perceived on return as a draft evader or deserter from national service and as a result face a real risk of persecution or serious harm.

• A person who has exited lawfully may on forcible return face having to resume or commence national service. In such a case there is a real risk of persecution or serious harm by virtue of such service constituting forced labour contrary to Article 4(2) and Article 3 of the ECHR.

Source: MST and Others (national service – risk categories) Eritrea (CG) [2016] UKUT 443 (IAC) (7 October 2016)